Momentum gathering behind equal shared parenting law

By AdvocateDaily.com Staff

A combination of positive social science research and sympathetic public opinion has set the scene for a fresh attempt to make equal shared parenting (ESP) the default position in custody disputes, Toronto family lawyer Brian Ludmer tells Law Times.

Ludmer, principal of LudmerLaw, helped spearhead C-560, a 2014 federal bill that would have legislated a rebuttable presumption of ESP, but it was defeated on second reading in the House of Commons

“We are redrafting the 2014 bill,” Ludmer says in the article. “Bill C-560 [An Act to amend the Divorce Act] covered some territory that is not strictly needed if the focus is on this issue. The current process is paring it down.”

He says groups in favour of the amendments have identified lawmakers in both the provincial and federal legislature prepared to act as sponsors.

“We hope this time around we will succeed,” Ludmer adds, noting that advocates of the move feel like there is momentum behind them this time around.

“The social science is overwhelmingly supportive. Public support is consistently high. Case law is developing in a certain direction,” he says. “Everything is coming together. As a result, legislative initiatives are everywhere.”

Ludmer explains that a Nanos poll conducted earlier this year by the Canadian Association for Equality found that a total of 84 per cent of decided voters were in favour of the move.

The poll recorded 35 per cent of respondents who strongly support the creation of a presumption of equal parenting in child custody cases in federal and provincial legislation. A further 35 per cent somewhat support it, while just nine per cent somewhat oppose it and only four per cent strongly oppose it. The remaining17 per cent responded that they were unsure of their position on the issue.

Although the 2014 law was proposed by an MP in the then-governing Conservative party, Ludmer says the failure to attract official government backing was a flaw.

“This time we will go through a longer education process of parliamentarians before we rush it through to a vote,” he tells the legal newspaper.

While case law appears to be moving in the direction of ESP without legislation, Ludmer says that legislative reform is still needed.

“The current maximum contact principle is not working because it is too vague and nonspecific and leaves everything to judicial discretion. It is ignored for the most part in practice, despite lots of decisions which do try to address it,” he says.

“There is a complete lack of consistency and self-represented litigants fare poorly as they can’t make the arguments necessary or properly access the applicable law.”

By making a 50-50 parenting split the default position, Ludmer says it will also take a load off judges working in an increasingly overwhelmed family law system.

“You look at the amount of money the family court system is costing the taxpayer. There is no empirical evidence it is well spent," he says.

"Imagine if you remove all the cases for normal parents, who both have strengths and weaknesses and stop searching for a primary parent,” Ludmer adds in an interview with AdvocateDaily.com.